Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 30

Full-Text Articles in Law

Lawyers For White People?, Jessie Allen Jan 2021

Lawyers For White People?, Jessie Allen

Articles

This article investigates an anomalous legal ethics rule, and in the process exposes how current equal protection doctrine distorts civil rights regulation. When in 2016 the ABA Model Rules of Professional Conduct finally adopted its first ever rule forbidding discrimination in the practice of law, the rule carried a strange exemption: it does not apply to lawyers’ acceptance or rejection of clients. The exemption for client selection seems wrong. It contradicts the common understanding that in the U.S. today businesses may not refuse service on discriminatory grounds. It sends a message that lawyers enjoy a professional prerogative to discriminate ...


Ending-Life Decisions: Some Disability Perspectives, Mary Crossley Jan 2017

Ending-Life Decisions: Some Disability Perspectives, Mary Crossley

Articles

In the forty years since Quinlan, disability has been present in the conversation within medicine, bioethics, and law about the acceptability of death-hastening medical decisions, but it has at times been viewed as an interloper, an uninvited guest to the party, or perhaps the guest whom the host was obliged to invite, but whose presence was not entirely welcomed. Notwithstanding some short-term reversals and counter-currents, the steady arc of end-of-life law during the past four decades has been towards liberalization of ending-life choices by and for patients who are severely compromised or near the end of their lives. During that ...


Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr. Jan 2016

Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.

Articles

As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.

This Article argues, however, that the Thirteenth Amendment's ...


Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr. Jan 2016

Whren's Flawed Assumptions Regarding Race, History, And Unconscious Bias, William M. Carter Jr.

Articles

This article is adapted from remarks presented at CWRU Law School's symposium marking the 20th anniversary of Whren v. United States. The article critiques Whren’s constitutional methodology and evident willful blindness to issues of social psychology, unconscious bias, and the lengthy American history of racialized conceptions of crime and criminalized conceptions of race. The article concludes by suggesting a possible path forward: reconceptualizing racially motivated pretextual police encounters as a badge or incident of slavery under the Thirteenth Amendment issue rather than as abstract Fourth or Fourteenth Amendment issues.


Giving Meaning To 'Meaningful Access' In Medicaid Managed Care, Mary Crossley Jan 2014

Giving Meaning To 'Meaningful Access' In Medicaid Managed Care, Mary Crossley

Articles

As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging ...


The Thirteenth Amendment And Constitutional Change, William M. Carter Jr. Jan 2014

The Thirteenth Amendment And Constitutional Change, William M. Carter Jr.

Articles

This article builds upon remarks the author originally delivered at the Nineteenth Annual Derrick Bell Lecture on Race in American Society at NYU Law in November of 2014. The Article describes the history and purpose of the Thirteenth Amendment’s proscription of the badges and incidents of slavery and argues that an understanding of the Amendment's context and its Framers' intent can provide the basis for a more progressive vision for advancing civil rights. The Article discusses how the Thirteenth Amendment could prove to be more effective in addressing persisting forms of inequality that have escaped the reach of ...


The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr. Jan 2013

The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.

Articles

This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.


The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr. Jan 2012

The Thirteenth Amendment And Pro-Equality Speech, William M. Carter Jr.

Articles

The Thirteenth Amendment’s Framers envisioned the Amendment as providing federal authority to eliminate the “badges and incidents of slavery.” The freemen and their descendants are the most likely to be burdened with the effects of stigma, stereotypes, and structural discrimination arising from the slave system. Because African Americans are therefore the most obvious beneficiaries of the Amendment’s promise to eliminate the legacy of slavery, it is often mistakenly assumed that federal power to eradicate the badges and incidents of slavery only permits remedies aimed at redressing the subordination of African Americans. While African Americans were the primary victims ...


The Realism Of Race In Judicial Decision Making: An Empirical Analysis Of Plaintiffs' Race And Judges' Race, Pat K. Chew, Robert E. Kelley Jan 2012

The Realism Of Race In Judicial Decision Making: An Empirical Analysis Of Plaintiffs' Race And Judges' Race, Pat K. Chew, Robert E. Kelley

Articles

American society is becoming increasingly diverse. At the same time, the federal judiciary continues to be predominantly White. What difference does this make? This article offers an empirical answer to that question through an extensive study of workplace racial harassment cases. It finds that judges of different races reach different conclusions, with non-African American judges less likely to hold for the plaintiffs. It also finds that plaintiffs of different races fare differently, with African Americans the most likely to lose and Hispanics the most likely to be successful. Finally, countering the formalism model’s tenet that judges are color-blind, the ...


The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr. Jan 2012

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly ...


The Thirteenth Amendment And Interest Convergence, William M. Carter Jr. Jan 2011

The Thirteenth Amendment And Interest Convergence, William M. Carter Jr.

Articles

The Thirteenth Amendment was intended to eliminate the institution of slavery and to eliminate the legacy of slavery. Having accomplished the former, the Amendment has only rarely been extended to the latter. The Thirteenth Amendment’s great promise therefore remains unrealized.

This Article explores the gap between the Thirteenth Amendment’s promise and its implementation. Drawing on Critical Race Theory, this Article argues that the relative underdevelopment of Thirteenth Amendment doctrine is due in part to a lack of perceived interest convergence in eliminating what the Amendment’s Framers called the “badges and incidents of slavery.” The theory of interest ...


Taxing Civil Rights Gains, Anthony C. Infanti Jan 2010

Taxing Civil Rights Gains, Anthony C. Infanti

Articles

In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable ...


Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley Jan 2009

Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, Pat K. Chew, Robert E. Kelley

Articles

This empirical study of over 400 federal cases, representing workplace racial harassment jurisprudence over a twenty-year period, found that judges' race significantly affects outcomes in these cases. African American judges rule differently than White judges, even when we take into account their political affiliation and case characteristics. At the same time, our findings indicate that judges of all races are attentive to relevant facts of the cases but interpret them differently. Thus, while we cannot predict how an individual judge might act, our study results strongly suggest that African American judges as a group and White judges as a group ...


The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams Jan 2008

The Heart Of The Game: Putting Race And Educational Equity At The Center Of Title Ix, Deborah L. Brake, Verna L. Williams

Articles

This article examines how race and educational equity issues shape women's sports experiences, building upon the narrative of Darnellia Russell, a high school basketball player profiled in the documentary The Heart of the Game. Darnellia is a star player who, because of an unintended pregnancy, has to fight to play the game she loves.

This girl's story provides a unique and underutilized lens through which to examine gender and athletics, as well as evaluate the legal framework for gender equality in sport. In focusing on this narrative, we seek to give voice to black female athletes and to ...


Title Ix As Pragmatic Feminism, Deborah Brake Jan 2007

Title Ix As Pragmatic Feminism, Deborah Brake

Articles

This paper uses Title IX as a vehicle for exploring the potential benefits of pragmatism for feminist legal theory. Title IX is unusual in antidiscrimination law for its eclectic approach to theory, drawing from liberal feminism, substantive equality, antisubordination and different voice models of equality at various points in the law's approach to gender equality in sports. This paper argues that Title IX, as a pragmatic approach to theory, provides a promising example of how feminist legal theory can draw from pragmatism to navigate the double-bind and the backlash.

Following an introduction in Part I, Part II of this ...


Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake Jan 2007

Perceiving Subtle Sexism: Mapping The Social-Psychological Forces And Legal Narratives That Obscure Gender Bias, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chosen institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct ...


Derrick Bell's Narratives As Parables, George H. Taylor Jan 2007

Derrick Bell's Narratives As Parables, George H. Taylor

Articles

Use of the narrative form in law and legal analysis remains controversial, especially by advocates of critical race theory. Critics maintain that narratives can distort if they are not sufficiently based on empirical fact or reason. Narratives, the claim goes, must be evaluated on the basis of objective standards. My Article argues that this posture critical of narrative is mistaken. I contend that to comprehend how narratives should be interpreted, their literary character must first be understood.

The Article examines the narratives of Derrick Bell, the preeminent critical race and narrative scholar, and maintains that Bell's narratives should be ...


Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr. Jan 2007

Judicial Review Of Thirteenth Amendment Legislation: 'Congruence And Proportionality' Or 'Necessary And Proper'?, William M. Carter Jr.

Articles

The Thirteenth Amendment has relatively recently been rediscovered by scholars and litigants as a source of civil rights protections. Most of the scholarship focuses on judicial enforcement of the Amendment in lawsuits brought by individuals. However, scholars have paid relatively little attention as of late to the proper scope of congressional action enforcing the Amendment. The reason, presumably, is that it is fairly well settled that Congress enjoys very broad authority to determine what constitutes either literal slavery or, to use the language of Jones v. Alfred H. Mayer Co., a "badge or incident of slavery" falling within the Amendment ...


Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor Jan 2006

Race, Religion And Law: The Tension Between Spirit And Its Institutionalization, George H. Taylor

Articles

My reflections flow from some recent writings by the critical race scholar Derrick Bell. Bell acknowledges that in prior work he has focused on the "the economic, political, and cultural dimensions of racism" but now suggests the possibility of a "deeper foundation" arising from the conjunction that "[m]ost racists are also Christians." This statement is Bell at his best: at once both extremely provocative and extremely unsettling. I want to explore and develop two aspects of Bell's argument.

First, if we want to examine and understand the many dimensions of racism, it is not enough to employ economic ...


Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew Jan 2006

Freeing Racial Harassment From The Sexual Harassment Model, Pat K. Chew

Articles

Judges, academics, and lawyers alike base their legal analyses of workplace racial harassment on the sexual harassment model. Legal principles derived from sexual harassment jurisprudence are presumed to be equally appropriate for racial harassment cases. The implicit assumption is that the social harms and public policy goals of racial harassment and sexual harassment are sufficiently similar to justify analogous scrutiny and remedies. Parties to racial harassment cases cite the reasoning and elements of sexual harassment cases without hesitation, as if racial harassment and sexual harassment are behaviorally and legally indistinguishable.

This Article, however, questions the assumption that there should be ...


Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti Jan 2006

Homo Sacer, Homosexual: Some Thoughts On Waging Tax Guerrilla Warfare, Anthony C. Infanti

Articles

Inspired by Giorgio Agamben's Homo Sacer: Sovereign Power and Bare Life, this essay raises the question whether lesbians and gay men should fundamentally rethink their relationship with the law. Until now, lesbians and gay men have played by the rules: We bide our time for the appropriate moment to challenge the application of the law, and then do so from within the legal system through impact litigation. Focusing on Agamben's discussion of Kafka's parable, "Before the Law," this essay challenges us to consider whether, instead of engaging the law on its own terms, lesbians and gay men ...


Unwrapping Racial Harassment Law, Pat K. Chew Jan 2006

Unwrapping Racial Harassment Law, Pat K. Chew

Articles

This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise.

Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants ...


Retaliation, Deborah Brake Jan 2005

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice ...


Discrimination Against The Unhealthy In Health Insurance, Mary Crossley Jan 2005

Discrimination Against The Unhealthy In Health Insurance, Mary Crossley

Articles

As employers seek to contain their health care costs and politicians create coverage mechanisms to promote individual empowerment, people with health problems increasingly are forced to shoulder the load of their own medical costs. The trend towards consumerism in health coverage shifts not simply costs, but also insurance risk, to individual insureds, and the results may be particularly dire for people in poor health. This Article describes a growing body of research showing that unhealthy people can be expected disproportionately to pay the price for consumerism, not only in dollars, but in preventable disease and disability as well. In short ...


Racism As 'The National Crucial Sin': Theology And Derrick Bell, George H. Taylor Jan 2004

Racism As 'The National Crucial Sin': Theology And Derrick Bell, George H. Taylor

Articles

The Article probes a paradox that lies at the heart of the work of critical race scholar Derrick Bell. Bell claims on the one hand that racism is permanent, and yet on the other he argues that the fight against racism is both necessary and meaningful. Although Bell's thesis of racism's permanence has been criticized for rendering action for racial justice unavailing, the Article advances an understanding of Bell that supports and defends the integrity of his paradox. The Article draws upon the work of Protestant theologian Reinhold Niebuhr and Niebuhr's paradox that social action is both ...


When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah Brake Jan 2004

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah Brake

Articles

This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term "leveling down" refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that ...


A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr. Jan 2004

A Thirteenth Amendment Framework For Combating Racial Profiling, William M. Carter Jr.

Articles

Law enforcement officers’ use of race to single persons out for criminal suspicion (“racial profiling”) is the subject of much scrutiny and debate. This Article provides a new understanding of racial profiling. While scholars have correctly concluded that racial profiling should be considered a violation of the Fourth Amendment, the Fourteenth Amendment’s Equal Protection Clause, and existing federal statutes, this Article contends that the use of race as a proxy for criminality is also a badge and incident of slavery in violation of the Thirteenth Amendment.

Racial profiling is not only a denial of the right to equal treatment ...


Revisiting Title Ix's Feminist Legacy: Moving Beyond The Three-Part Test, Deborah Brake Jan 2004

Revisiting Title Ix's Feminist Legacy: Moving Beyond The Three-Part Test, Deborah Brake

Articles

This essay addresses three issues surrounding Title IX's application to women's sports that have been largely eclipsed by the recent controversy over Title IX's three-part test: the increasingly male composition of athletic leadership positions; the focus on cutting men's sports as a remedy to discrimination against women; and the role of revenue and massive spending on men's elite sports in justifying gender inequality in sports. The essay links each of these issues to broader questions and concerns in discrimination law more generally, and concludes that deeper cultural change is needed to fulfill Title IX's ...


Infected Judgment: Legal Responses To Physician Bias, Mary Crossley Jan 2003

Infected Judgment: Legal Responses To Physician Bias, Mary Crossley

Articles

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician's choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating ...


School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake Jan 2001

School Liability For Peer Sexual Harassment After Davis: Shifting From Intent To Causation In Discrimination Law, Deborah L. Brake

Articles

This essay seeks to explain the Davis v. Monroe County Board of Education case as an interpretation of discrimination that notably and correctly focuses on how institutions cause sex-based harm, rather than on whether officials within chose institutions act with a discriminatory intent. In the process, I discuss what appears to be the implicit theory of discrimination underlying the Davis decision: that schools cause the discrimination by exacerbating the harm that results from sexual harassment by students. I then explore the significance of the deliberate indifference requirement in this context, concluding that the standard, for all its flaws, is distinct ...